Oil Leak 174 EPS Part 2 Definition of Disturbance

23rd May 2017
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So, back to Marine Scotland’s own guidelines for EPS – one of the main offences that could be committed by STS operation is disturbance of whales and dolphins. But what do they mean by disturbance?? Unsurprisingly, there is no quick answer, here’s what Marine Scotland say:

1.2.1 What constitutes disturbance?
Article 12(1)(b) of the Habitats Directive provides:

(i) ‘Member States shall take the requisite measures to establish a system of strict protection for the animal species listed in Annex IV(a) in their natural range, prohibiting:’ among other things, the (b) ‘deliberate disturbance of these species, particularly during the period of breeding, rearing, hibernation and migration.’

’Disturbance’ for the purpose of Article 12(1)(b) of the Habitats Directive covers a wide range of impacts. What activities could cause ‘disturbance’ for the purpose of Article 12(1)(b) depends on the nature of the particular activity and the impact on the particular species. ‘Disturbance’ is not defined in the Habitats Regulations, however, when considering what constitutes disturbance for the purpose of Article 12(1)(b), the following matters should be taken into account.

‘Disturbance’ in Article 12(1)(b) should be interpreted in light of the purpose of the Habitats Directive to which this Article contributes. In particular, Article 2(2) of the Directive provides that measures taken pursuant to the Habitats Directive must be designed to maintain or restore protected species at favourable conservation status.

The following considerations also govern the approach to Article 12(1)(b)ii:

  1. Article 12(1)(b) affords protection specifically to species and not to habitats;
  2. The prohibition relates to the protection of ‘species’ not ‘specimens of species.’
  3. Although the word ‘significant’ is omitted from Article 12(1)(b) in relation to the nature of the disturbance, that cannot preclude an assessment of the nature and extent of the negative impact and ultimately a judgement as to whether there is sufficient evidence to constitute a ‘disturbance’ of the species
  4. It is implicit that activity during the period of breeding, rearing, hibernation and migration is more likely to have a sufficient negative impact on the species to constitute prohibited ‘disturbance’ than activity at other times of the year.

Article 12(1)(b) is transposed into domestic legislation by Regulations 39(1) and (2) of the Habitats Regulations 1994. Therefore, when considering what constitutes ‘disturbance’, thought should be given to Regulation 39(1)(b) which provides a number of specific circumstances in which EPS can be disturbed and which can potentially have an impact on the status of the species.

This list is not exhaustive, and disturbance that could be considered an offence may occur in other circumstances and therefore be covered under Regulation 39(2) of the Habitats Regulations which states that it is an offence to ’deliberately or recklessly disturb any dolphin, porpoise or whale (cetacean)’.

Due to the complexities of interactions between activities, species and local circumstances, it is impractical for this guidance to consider every permutation and state where an offence is or is not likely to occur. It is for the Courts to assess whether an offence has been committed as a result of an activity. However, by examining the intentions behind the Habitats Directive and other sources of information on disturbance (for example, the European Commission ’Guidance document on the strict protection of animal species of Community interest under the Habitats Directive 92/43/EEC‘ and the ‘Scottish Marine Wildlife Watching Code’) it is possible to find examples of what types of disturbance might be more likely to constitute an offence under the Habitats Regulations.

Remember – these are not our words – these are Marine Scotland and SNH’s interpretation. Nowhere in the guidance does it say that the Habitat Regulations do not apply to reserved matter which is what the Scottish Government line is now – they would appear to be in conflict with their own guidance. It is clear that the Habitats Directive applies to the species – i.e. bottlenose dolphins and that the extent of impact must be assessed- also when breeding, rearing, migrating etc then the impact of the disturbance will be more significant. So what are we looking at with STS – vastly increased noise and shipping movements, not mention the risk of oil spill in the area area of highest dolphin densities at times of year when breeding and rearing will occur. Does anyone disagree that this will constitute disturbance?? We will get into the difference between “deliberate” and “reckless” disturbance shortly!

 

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